January 4, 2007

A subject I considered too boring to write about is the Chief Justice saying -- in his year-end report (PDF) -- that federal judges should be paid more. I think this issue comes up every year.

So I was surprised to see what looked like a hundred messages on the subject on the Conlawrpof email list talking about it. And now Dahlia Lithwick has this piece in Slate, taking John Roberts to task for what she thinks is his overstated language :

In his eight-page report, the chief focuses, with charts and graphs and his trademark folksy good nature, on a single issue: He and his colleagues want a raise. He starts off with a cute anecdote and warms up the crowd with some Rose Bowl references. It all looks pretty promising. Until he goes off the rails completely with some dubious analysis and wraps it all up in claims of a "constitutional crisis."...

The chief may actually be right on the merits, but his tone couldn't be more off-putting.... Nobody wants to hear about the smattering of judges who flee the federal bench because their six-figure salaries are too low....

But Roberts' worst misstep comes with the words constitutional crisis—words known to have a distinct legal meaning....

This total lack of savvy from a man who is usually pitch perfect in his dealings with both the Congress and the American public is surprising. Clearly he's upset and frustrated about the state of judicial pay, and he is attempting to advocate for his colleagues in the strongest, most dramatic terms. But he, more than most, should know that the words constitutional crisis start to lose their meaning when they are deployed in the interest of judicial pay hikes. And that the words independent judiciary—which have been stretched of late to include everything from judicial immunity from popular criticism to freedom from physical attacks—similarly begin to ring hollow when they are used to simply mean "underpaid jurists."

My first thought was: Well, he got everyone's attention for once on this recurrent, tedious issue.

He got me to go read the report. Let's look at the argument. Federal judges used to be paid significantly more than law professors at top schools. Now, it's more like half. Sure, it's still a great job, but the question is who will take it under these circumstances. Here's Roberts:

Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase. Do not get me wrong–there are very good judges in both of those categories. But a judiciary drawn more and more from only those categories would not be the sort of judiciary on which we have historically depended to protect the rule of law in this country.

There is a much more brutal point that he does not make. So I will. The job means different things to different people. A power-loving ideologue would do the job for nothing. Plenty of folks would pay large sums to have the job if it were for sale. The point is, you need normal, well-balanced people to handle the responsibilities of judging, so you need to offer appropriate compensation so that normal, well-balanced people will decide to accept the work.

With the pay this far out of proportion to the comparable job of law professor, the judiciary is undermined. The federal judge's salary is, along with life tenure, one of the two safeguards for judiciary independence provided in the Constitution:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

The judges might have aggressively interpreted that provision to require constant adjustments in their salary to deal with inflation, but that has not happened. Still, the principle is clear: the constitutional plan is to protect the judges from political manipulation. Congress can't attack the judges by cutting their pay, but it technically has the power to do something quite similar by constraining their pay over a long period of time. This isn't a direct attack, and it doesn't even seem meant as an attack. But it has an effect, and Roberts is right to raise the alarm about it. "Constitutional crisis" is strong language, but Roberts is defending the independence of what the Constitution designs as a co-equal branch.

44 comments:

Federal judges used to be paid significantly more than law professors at top schools. Now, it's more like half.

Solution: reduce the pay of law profs at top schools. They are likely vastly overpaid, and others will do the work for less if they balk at the pay cut. I have little patience for people who judge what their salaries should be based on others' salaries.

"Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase. Do not get me wrong–there are very good judges in both of those categories. But a judiciary drawn more and more from only those categories would not be the sort of judiciary on which we have historically depended to protect the rule of law in this country."

I would have made a different point (and perhaps Roberts did as well; I have not read it).

If we limit the size of the potential pool, then there are fewer top jurists in the pool. The fewer top quality jurists there are in the pool, the more likely it becomes that a poor choice will be made for appointment to the Circuit courts or to the Supreme Court.

I appreciate the rationales for paying judges more than the political branches might ordinarily assign them. I think perhaps more poignant than the comparison of law prof salaries to judges' salaries is the fact that those judge's fresh-out-of-law school clerks often make as much, if not more, more money than the judges when they move on to big firm jobs the year after they finish their clerkships.

But, on the other hand, the current salary of $165,000 for district court judges provides for a very, very comfortable lifestyle in this country unless you live in a major urban area. Wikipedia says that in 2003, the 95th percentile of the U.S. population was making an annual salary $154,120. So, judges are already making more than 95% of the population. And they should be. But its not clear to me that pushing them into the top 3% would necessarily change the number of people who would take judgeships that much, or that the change would necessarily be a net good. Plus, there are so many other perks to being a judge, power, prestige, working conditions, pension, job security, and those things should kick the salary a bit lower than private sector equivalents.

What I have seen in terms of the effect of this pay gap is this: only already successful, big firm corporate litigators who have amassed a significant amount of money will apply.

There is nothing wrong with this, of course, except that, like Roberts, their perspective as lawyers has always been to defend large corporations in suits alleging wrongful conduct. Thus, they have little experience representing persons seeking redress against these businesses, and no experience applying tort, contract, statutory or class action law in situations where they are seeking to hold a business liable for legal violations.

The other pool of applicants are lifetime government prosecutors, like Alito, who again, in the criminal realm, only have experience prosecuting crimes.

hmmm like law school profs and tenure and federal judges with lifetime appointments ...

i would think it was an honor to be chosen to serve in that capacity..an honor "earned" by something other than wealth or contributions. if the nominees refuse due to financial hardships then that is something else to address but i fail to find much evidence that this happens.

also, they can, of course, suppliment their income by starting a blog.

Several commenters have mentioned "the tremendous perks of the job" with regard to federal judges. I wonder if they could list a few? Let me try: general respect for a prestigious position, deference (and butt-kissing) from staff and attorneys, lifetime tenure for Article III judges, a generous retirement or the option of taking "senior status" (which allows for a reduced caseload, a sort of working retirement)for Article III judges. On the other hand, judges are extremely limited as to other jobs they can take after retirement (if they wish to keep their benefits), have to give up political life (appropriately), and generally make less than other successful attorneys of the same experience. They also work pretty hard in any of the busy districts. While I agree that $165k is a lot of money, as pointed out by Prof. Althouse, the pool for federal judges is being limited. A lot of attorneys seem to look at a judgeship as a retirement job- make a lot of money, contribute a lot to the party of your choice, then get appointed to a judgeship to add a gloss of service and prestige to your career. As a taxpayer, those judges aren't the best bargain, they'll take senior status as soon as they are able and cut way back on their caseload. Better to pay a little more salary and get some younger, more dedicated judges. Lastly, regarding ties to Congressional pay, how many members of Congress manage to become rich during their terms in office due to investment opportunities that just seem to come their way and to work out? That doesn't and shouldn't happen with judges (not that it should with Congress, either). Sorry for the long post.

Several commenters have mentioned "the tremendous perks of the job" with regard to federal judges. I wonder if they could list a few? Let me try: general respect for a prestigious position, deference (and butt-kissing) from staff and attorneys, lifetime tenure for Article III judges, a generous retirement or the option of taking "senior status" (which allows for a reduced caseload, a sort of working retirement)for Article III judges. On the other hand, judges are extremely limited as to other jobs they can take after retirement (if they wish to keep their benefits), have to give up political life (appropriately), and generally make less than other successful attorneys of the same experience. They also work pretty hard in any of the busy districts. While I agree that $165k is a lot of money, as pointed out by Prof. Althouse, the pool for federal judges is being limited. A lot of attorneys seem to look at a judgeship as a retirement job- make a lot of money, contribute a lot to the party of your choice, then get appointed to a judgeship to add a gloss of service and prestige to your career. As a taxpayer, those judges aren't the best bargain, they'll take senior status as soon as they are able and cut way back on their caseload. Better to pay a little more salary and get some younger, more dedicated judges. Lastly, regarding ties to Congressional pay, how many members of Congress manage to become rich during their terms in office due to investment opportunities that just seem to come their way and to work out? That doesn't and shouldn't happen with judges (not that it should with Congress, either). Sorry for the long post.

My sense is that if they make twice what the chief justice makes at 165k, then it's the salaries of law professors that's way out of whack.

Consider that, as hard-working employees, of course giving 110% of their time, energy, and effort to their employer and to their students, they also have the ample time left over to post to and otherwise nursemaid a very active blog in real time on a 24/7/365 basis.

Most of the posters here seem to be missing the point. So what if judges are paid more than 95% of the population? Federal district courts are located in at least relatively big cities, and appellate courts are located in very large cities such as New York, Washington DC, Chicago and San Francisco. $165,000 per year is what a first-year associate at a private law firm in New York or San Francisco earns. Don't you think that Federal judges are worth more than clueless first-year associates?

Last year, one of the best judges in the country - considered by many to be a future candidate for the Supreme Court - left his seat to go in-house at Boeing, because he couldn't afford to pay for his kids to go to college on a judge's salary. Underpaying Federal judges is a real concern.

And power-loving ideologues seem to do it at the current salary. Are you honestly saying the $165k isn't enough?

Joseph Hovsep said...$165,000 for district court judges provides for a very, very comfortable lifestyle in this country unless you live in a major urban area.

I live in a major urban area and that salary would be great and I'll take it. I make waaayyy less than that and live a comfortable lifestyle. Tell me exactly which city other than NYC or San Fran in which $165K aint enough?

I had no idea what judges made before this discussion. Roberts argument convinces me more than ever that tort reform is needed and that lawyers in general are overpaid whether they're litigators, real estate attorneys or law professors.

... if I were deciding between the two jobs, money would not be important.

You are saying out of one side of your mouth that we have to pay judges more to get high quality folks, but out of the other side that a high quality person like yourself wouldn't take the job at any price.

Maybe I'm not aware of it, but do we have a big problem with judges being bribed at current salaries?

I don't think Zeb is off topic. Assuming there is a problem with pay disparity between lawyers and judges there are at least 2 possible solutions; A) increase judge's pay or B) decrease the pay of the lawyers through tort reform.

MM: "That's a very pessimistic view on the character of most lawyers."

And your point is?

Modnewt: "You are saying out of one side of your mouth that we have to pay judges more to get high quality folks, but out of the other side that a high quality person like yourself wouldn't take the job at any price."

Who is this "a high quality person like [myself]" to which you refer? Don't you know I'm bizarre?

Don't you think that Federal judges are worth more than clueless first-year associates?

I think first year associates at posh firms are grossly overpaid and grossly overworked and the immense salary is the main reason so many young lawyers seek out those jobs. I think experienced lawyers considering judicial careers approach that decision with a very different mindset and are motivated by very different incentives.

Last year, one of the best judges in the country - considered by many to be a future candidate for the Supreme Court - left his seat to go in-house at Boeing, because he couldn't afford to pay for his kids to go to college on a judge's salary.

Somehow, a lot of kids whose parents are unfortunate enough to fall in the bottom 95% of the salary matrix in this country manage to get through college. Luttig may claim he needed to pull in a cool million to put his kids through college, but that doesn't pass the laugh test for me. I think its more likely he realized he wasn't gonna get on the Supreme Court, so he decided that rather than continue indefinitely as an appellate judge he'd rather live a different kind of lifestyle that no judicial salary would have satisfied.

I'm not saying judges shouldn't be paid very well or that its not yet time to give them a raise, but I agree with Lithwick that calling the situation a constitutional crisis is absurd. $165,000 a year (and that's just one spouse's income) is very good pay even in major urban areas.

Personally, I think being a lawprof is a much more satisfying than being a judge, and if I were deciding between the two jobs, money would not be important.

This is another quibble I have with Roberts' logic. I've never been and can't imagine I'll ever be in a position where I'd be considering a judgeship, but if I were I don't think the salary would necessarily be one of my top concerns. The relative enjoyment I'd have in the job and the pros and cons of being a public figure would be bigger concerns. It seems to me most people facing that decision would ask themselves whether or not they really want to be a judge, not whether they want to earn a measly $165,000/year.

You seem to be making the tacit assumption that there is a direct relationship between salary (or potential salary) as a lawyer and competence as a judge.

Furthermore, this assumes that people will take a position as a federal judge based purely on salary. Are lawyers really that shallow? And do we want our judges to be greedy bastards?

The reality is that the pool for competent judges is huge. Until the supply genuinely dimmishes to the point where so many candidates are are turning down offers of judicial appointment, increasing the salary serves no purpose.

(And, by the way, I hold a very skeptical eye to the suggestion that a significant number of lawyers are actually turning down court appointments because of pay. More likely they boast that they would be willing to take such a position were the pay higher, but nobody has made an offer and nobody ever will.)

PS. Those who dismiss the perks of federal judgeships are out of their minds. There are VERY few real world jobs that have perks even half as good. So you can't run for office after retiring. Boo hoo.

PPS. One suggestion was to raise pay so as to attract younger judges who wouldn't cut back on their case load. Huh? Sounds more like an incentive to do just that, but at a younger age. Pay me $250,000 a year. I work a few years, cut back on my case load, coast to retirement.

Oh, I forgot, Judges must have those nice Rolex watches, Lexus cars and mansions in the nicest part of town. Heaven forbid they actually live like the people they judge.

There are people who are qualified who prefer more academic pursuits to being a judge or private practice.

There are people who are qualified who prefer private practice to academia and being a judge.

There are people who are qualified to be judges who prefer private practice to being a judge because of money -- and some of those people are unqualified to be academics.

There are qualified people who would be judges, who don't like academia, but cannot be judges because the pay is too low to take care of their dependents and so forth, so they stay in private practice.

The latter category of qualified attorneys in private practice for whom money is a bar but not a sole objective is the group that Roberts is talking about. These aren't money grubbers; they aren't academics; they don't want to be academics; but they are qualified and they aren't applying because the pay is too low.

John Roberts is not one of these people, as his wife is a huge partner in a major law firm, making millions per year. He can afford the switch; others can't.

I note that the sixty largest nonprofits pay their CEOs more than twice the salaries of cabinet officials, while the President gets less than half the typical compensation of a Fortune 500 CEO.

Can our executive branch properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of executive compensation, or (2) people for whom the government salary represents a pay increase?

My point: Where is the evidence that talented people are turning away from potential jobs as judges because of the pay? Are lawyers that mercenary that they do that?

If things are as bad as Justice Roberts claim, there should be plenty of examples to cite -- how talented judge Jones, offered the bench in San Francisco, laughed at the salary and walked away. Or how feelers to a good lawyer to become a judge were rebuffed because of pay -- but that's only gonna work if the next person on the Potential Judge List is a real clown of a lawyer. If you rank the top 1000 potential judges and 2 at the top refuse because of salary -- what have you really lost? Nowhere is the number of potential judges turned off by salary quantified. It makes the argument that therefore judges need more money very hard to understand.

Saying that Judge salaries aren't enough to attract talented hardworking jurists because Law Profs can make more money is an argument that no one is going to listen to, IMO.

I have to really laugh at some of the idiocy on the right though-- they hammer the stake through themselves without even realizing it.

Tax-cutting conservatives work hard to hold down salaries of many government workers, including judges.

So then men and women in the legal profession who themselves may be of a conservative bent, being more likely to be motivated by money than their liberal counterparts, will more often follow the money and go to work for a private law firm or someplace else where they can earn more.

Which leaves sitting on the bench-- those persons who believe that making money might not be so important, but they may be more motivated by things like personal fulfillment or a desire to spread justice in the world-- in other words, mostly liberal judges.

And then conservatives complain that the judiciary is tilting to the left, when they themselves have made it that way by underpaying judges.

One more case of conservatives wanting to have their cake and eat it too.

Where is the evidence that talented people are turning away from potential jobs as judges because of the pay? Are lawyers that mercenary that they do that?

It has nothing to do with being a soldier-of-fortune. Some people who do Legal Aid care about it passionately and working at Legal Aid fully compensates for the lower salary; usually these people are young and without kids.

Some people love working at Legal Aid, but have rich parents, or a rich spouse, so even if they had kids and were older, their low salary never is a problem.

And some people who have kids, and are older, and would love to work for Legal Aid, cannot because their spouse isn't rich, their parents aren't rich, and even if the work fully compensated them psychologically, it wouldn't satisfy the real demands of their kids and spouse.

You talk like someone who has never had kids and a spouse to support, especially not smart ones who want to attend college.

Wanting the best for your kids doesn't make you a mercenary, but insisting that the desire to care for your family is an immoral byproduct of capitalism is about as absurd as you can get. It seems like you just hate good lawyers because they're the class of persons to value industry and professionalism and the obligation to one's family, whereas in your perfect world they'd be sent off to the reeducation farm to learn proper worship of the State.

It seems like you didn't read the report and glance at the chart. The chart clearly shows that the pool of potential judges now consists of public service and academic lawyers instead of professional lawyers in private practice toward the end of their careers. You're getting judges without real world experience, people who have never litigated a case, people who have never dealt with paying clients. In other words, the judges are more and more divorced from practical reality and a common sense understanding of the purpose and function of law. So when you get these obviously political and bizarre decisions from any locus on the political spectrum, the reason why, Roberts suggests, is that the pay is too low. If you want a pragmatic and common sense approach to the law, you have to pay for it. That means attracting risk-averse lawyers, and risk-averse lawyers are in big law firms.

Joe at 1:18 wrote:"PPS. One suggestion was to raise pay so as to attract younger judges who wouldn't cut back on their case load. Huh? Sounds more like an incentive to do just that, but at a younger age. Pay me $250,000 a year. I work a few years, cut back on my case load, coast to retirement." "Senior status", the point when judges can cut back on their caseload, is achieved at the "rule of 80", see http://www.uscourts.gov/faq.htmlBasically, years of service plus age must equal 80. As to Madisonman's question about lawyers being mercenary, I think the short answer is "yes". If you are making, say, $250k/year, stashing money for retirement like crazy and putting a couple of kids through college, how easy would it be to cut your salary by $90k? We'll never really be able to tell who chooses how unless the folks who get approached about judgeships (and turn them down) publicize the fact, which is unlikely. The Senator might not tap them the next time around, when they feel like they can afford the position (district and appellate judges are frequently chosen from candidates proposed by the senior senator of the president's party).

$165,000 is not a lot of money for a lawyer. It might be a good salary for any number of people, but those people haven't had the training and education and decades of experience that Federal judges have had.

Joseph - Constitutional crisis is overstating it, but I suggest you try putting three children though Ivy league schools on $165,000 a year while living in an expensive area such as Northern Virginia. People get by with less, but you can't with a straight face make an argument that Judge Lutting was rolling in dough, or that he was being paid what he was worth.

Mr. Blake, please cite your statistical evidence of conservatives "being more likely to be motivated by money than their liberal counterparts", including the longitudinal attitude survey that shows evidence of the direction of causation between salary and political attitudes.

Oh, fine a Constitutional Crisis is at hand because Fed Judges are underpaid! As evidenced by the masses of Fed judges leaving the bench for private practice to feed their starving families or the extreme difficulty Democrats and Republicans now have of filling their lists with qualified candidates!

That said, maybe the poor old Chief Justice is right.

A Crisis does exist and requires legislative intervention.

So I propose:

1. Pay each Fed Judge what a 1 and 1/2 Congress Reps makes. Pay each Appeals judge what a Senator makes. Pay each darn Scotus lawyer what the President makes.

2. Then end lifetime appointments by Amendment that Roberts&Co supports to 15 year terms, renewable at the will of Congress ONCE. End perks only Fed judges in the courthouse get not other government employees. But they do keep their free parking space.

3. Congress make that pay based on commensurate, mutually agreed to work levels. No more 3-month summer vacation for SCOTUS. No more 1 month with pay hiatuses for lower Fed Courts. No more banker's hours where Fed judges work 50% less hours than their private practice counterparts. SCOTUS declares it is a slow summer, clerks can handle it and want to sashay off to Europe for an extra month of being feted around nation to nation by the Ruling Elites there? Fine. Dock 'em a month's pay.

Of course, such ideas could destroy the very independence of the judiciary, force judges to moonlight as store clerks to pay their family's way. Add the fear of job insecurity if 15 year appointments came into play would greatly detract from their work - as evidenced by the performance of 99% of Americans with similar lack of total job security.

If this becomes a catastrophy and judges flee for the door, remember what Roberts nominator Bush said - "Plenty of illegals come to America to do the jobs no American wants to do, and America is better for it."

mdmnm said: "If you are making, say, $250k/year, stashing money for retirement like crazy and putting a couple of kids through college, how easy would it be to cut your salary by $90k?"

EXTREMELY EASY. You see, I live a frugal life. I don't live high on the hog buying expensive things and going on expensive vacations and buying houses in the wealthy areas of town with attendent higher property taxes. (You know how money you can save by not going out to eat every day at lunch? Quite a bit. Try cooking your dinners at home and eat cold cereal for breakfast. Get a Honda Civic instead of a Mercedes. Anyone making more that $60,000 a year pleading poverty is full of shit.)

As for college tuition; since when is that the responsibility of the parents? How about the kids get off their lazy asses and earn their tuition like so many of us did?

Incidentally, I made less than $30,000 last year due to changing jobs. I incurred no additional debt. I have four children. My wife works part time as a substitute teacher, but is at least 70% full time homemaker. I have helped my oldest with her continuing education, but like my father, it's not nearly enough to cover all her expenses. My other children will receive help as I am capable, but I fully expect them to pay for the bulk of their tuition and expenses. My youngest two so far have good enough grades that they are on track to get scholarships.

You are also not incurring the social life that the Justices are expected to have. They need to show up in the high society of the politicos to fly the flag of the department they represent. They are also expected to have the right dinners and also their wives are expected to also have the dresses to go along with all that. They do not exist in a vacuum as you do where you can just go underground and ignore the world.

I suggest you try putting three children though Ivy league schools on $165,000 a year while living in an expensive area such as Northern Virginia.

Oh puleeze! This is so unpersuasive. Since when are his kids entitled to go to an Ivy League school? I don't know what your political leanings are but if you are a righty this sounds ridiculously hypocritical.

I assume Roberts et al will soon be making these same arguments about primary school teachers. Oops, now that I think about it... probably not. I reckon like most conservatives he supports merit pay and hates the idea of tenure.

You are also not incurring the social life that the Justices are expected to have.

This social life argument is utterly asinine. I'm an IT professional with loads of education and work long hours and certainly more unusual hours than most judges (How many 2AM calls are Judges getting because some software failed?) If I tried to negotiate my salary saying that my social life required a higher salary I'd be laughed out of my boss's office.

A judge can choose to have whatever social life he or she wants. As a tax payer I want judges paid what the market calls for and what is required to get the job done.

How about the kids get off their lazy asses and earn their tuition like so many of us did?

Yes, because kids of federal judges shoud attend community college. That will greatly improve our democracy. And all children whose parents can afford to pay for their college tuition are lazy. They must be. Because their parents couldn't have possibly instilled in them a strong work ethic. Because most people who can afford to send their kids to college just didn't work hard.

I can not belive these guys are crying about making over $200,000.00. Does Roberts have a clue that the majority of Americans can not sympathize with him. I am very comfortably raising two children on less then that.And what happened to the idea of public service for the sake of public service.I say if you do not like the pay do not take the job. There are plenty of people who could do just as good as job as you for that money.Just please stop the pathetic whining.

So long as Judges insist on putting out nonsense, like Kelo, more Americans will favor cutting their pay than raising it. For at least sixty years the courts have acted as political institutions. When Judges stop imposing their personal opinions and start applying the Constitution, I will listen to arguments about pay. Until then I am unwilling to see my pay taken to support the lavish lifestyle that politicians, whether judicial or legislative, demand.